Accessibility Skip to Global Navigation Skip to Local Navigation Skip to Content Skip to Search Skip to Site Map

Articles for the keyword(s) "Forum shopping"

"New Zealand Conflict of Laws – A Bird’s Eye View"

FM Auburn and PRH Webb, 1977

In this section of an overview of New Zealand Conflict of Laws, the impact of the Accident Compensation Scheme on transnational tort litigation is considered. The authors discuss the interpretation and application of the double actionability rule for tort within the context of the bar on proceedings for damages in terms of the Accident Compensation Act 1972, with specific reference to the problem of foreigners’ loss of earnings.

^ Top of page

"Jurisdiction Shopping – NZLS Seeks Urgent Resolution"

Anonymous, 1993

In response to Gilmore v Gilmore [1993] NZFLR 561; (1993) 10 FRNZ 469, this brief note highlights the dilemma posed by different interpretations of forum non conveniens in New Zealand and Australia with regard to discretionary jurisdictional stays.

^ Top of page

"Recognition and Priority of Foreign Ship Mortgages"

Paul Myburgh, 1992

In The Ship “Betty Ott” v General Bills Ltd (The Betty Ott) [1992] 1 NZLR 655 the Court of Appeal held that a foreign-registered ship mortgage did not enjoy priority over an earlier equitable charge. In a critical analysis of this decision, the author points out that the Court’s approach to choice of law was based on the discredited doctrine of comity and reciprocity. Furthermore, the decision holds serious implications in regard to the security afforded by registered ship mortgages.

^ Top of page

"Reforming New Zealand’s Conflicts Process: The Case for Internationalisation"

Campbell McLachlan, 1984

This article calls for the adoption of an internationalist approach in developing the discipline of private international law in New Zealand. With reference to trans-national custody disputes and international child abduction, the author illustrates the need for internationally agreed solutions in order to secure conflicts justice for individuals caught up in trans-national family disputes. New Zealand should participate in the work of Hague Conference on Private International Law and contribute to the development of uniform private international law rules.

^ Top of page

"Renvoi: Throwing (and Catching) the Boomerang – Neilson v Overseas Projects Corporation of Victoria Ltd"

Elsabe Schoeman, 2006

The author examines the decision in Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54 with specific reference to the application of renvoi in transnational tort litigation and the application of a (foreign) flexible exception to the lex loci delicti. In regard to both of these matters, the case presented unique problems as a result of inadequate proof of the foreign (Chinese) law concerned. The author submits that renvoi and (foreign) exceptions are not appropriate ways of dealing with a rigid forum choice of law rule for tort.

^ Top of page

“Woodhouse Reprised: Accident Compensation and Trans-Tasman Integration”

Reid Mortensen, 2003

The author provides an in depth analysis of the ways in which New Zealand’s accident compensation scheme is inadequately accommodated by the Trans-Tasman Proceedings Acts. The disparities between the compensation provided by the ACC and common law damages available for personal injury claims in the Australian States is said to be the principle cause of forum shopping within the trans-Tasman area. The author demonstrates how overemphasis on the similarities between the legal systems of New Zealand and Australian has resulted in statutory drafting that is ill equipped to deal effectively with this issue. By way of solution statutory amendment is recommend for both the Trans-Tasman Proceedings Acts as well as the Accident Compensation Act.

^ Top of page

“Conflict of Laws International Torts Cases: The Need for Reform on Both Sides of the Tasman”

Anthony Gray, 2006

The author argues that the double actionability rule, which has survived in New Zealand, is no longer best suited for choice of law in tort. Instead, the lex loci delicti should be the preferred rule supplemented by a flexible exception. The author undertakes an in-depth analysis of the North American jurisprudence in this area, focusing on the value of the distinction between conduct regulation and loss distribution. He concludes that Australia and New Zealand should adopt similar choice of law rules for torts.

^ Top of page

“The Ship Supplier’s Lien: Taking a (Maple) Leaf out of the Canadian Statute Book?”

Paul Myburgh, 2010

This article discusses the different treatment of ship suppliers’ claims in Anglo-Common Law jurisdictions. The United States, until recently, was the only jurisdiction that granted a maritime lien status to such claims. Canada, to avoid discrepancies with the United States, which could lead to forum shopping, has recently introduced a statutory maritime lien for certain ship suppliers’ claims. The author urges other Anglo-Common Law jurisdictions, including New Zealand, to reconsider their position in light of such developments.

^ Top of page

“Rome II and the Substance-Procedure Dichotomy: Crossing the Rubicon”

Elsabe Schoeman, 2010

The article examines the approach adopted in Rome II towards the substance-procedure distinction and signposts its potential significance for contemporary conflicts theory from an Anglo-Common Law perspective. The Rome II approach is regarded to be generally different from the one found under the common law. This is evident from a far broader category of matters assigned to the applicable law and a corresponding narrower category of matters governed by the lex fori. The author urges Anglo-Common Law jurisdictions to pay closer attention to Rome II and use it to re-evaluate their own positions in regard to the distinction between substance and procedure.

^ Top of page

"The Internet – A New World without Frontiers"

Clive Elliot, 1998

With reference to American case law, the author discusses jurisdictional issues relating to internet activity. Consideration is given to the potential implications of the application of New Zealand rules of jurisdiction within this context.

^ Top of page

"New Zealand Conflict of Laws – A Bird’s Eye View"

FM Auburn and PRH Webb, 1978

In this section of an overview of New Zealand Conflict of Laws, the impact of the Accident Compensation Scheme on transnational tort litigation is considered. The authors discuss the interpretation and application of the double actionability rule for tort within the context of the bar on proceedings for damages in terms of the Accident Compensation Act 1972, with specific reference to the problem of foreigners’ loss of earnings.

^ Top of page

"Choice of Law Clauses in International Contracts: Overseas Developments"

Nicky Richardson, 1992

The author provides an in-depth discussion and criticism of the Rome Convention on the Law Applicable to Contractual Obligations (1980). The essence of the discussion centres on how the Convention deals with the concept of party autonomy in contractual situations. The author concludes that Article 3 supports party autonomy and clarifies certain related matters, whereas Article 7(1), which relates to mandatory rules, is an ambiguous and uncertain provision. Lastly, it is suggested that the concepts of characteristic performance and mandatory rules should be considered when reforming New Zealand choice of law in contract.

^ Top of page

"From Savigny to Cyberspace: Does the Internet Sound the Death-Knell for the Conflict of Laws?"

Campbell McLachlan, 2006

This article examines the challenges posed by the internet for classic conflicts theory and method in regard to cross-border communications with specific reference to defamation, privacy and copyright. A detailed comparative survey refers extensively to law reform initiatives and jurisprudential developments in a number of Anglo-Commonwealth countries, as well as Europe. The author explores the dynamics of the interplay between jurisdiction and choice of law and its effect on the traditional principle of territoriality within the context of cross-border communications disputes.

^ Top of page

"Harding v Wealands: Substance v Procedure in the English Courts"

Elsabe Schoeman, 2007

This comment on Harding v Wealands [2006] UKHL 32 addresses two issues in transnational tort litigation: (1) the application of an exception to a general tort choice of law rule, and (2) the role of the substance-procedure dichotomy. The author submits that the substance-procedure distinction is being manipulated to achieve the desired result, while the focus should be on the identification of the appropriate lex causae.

^ Top of page

"Jurisdiction and Choice of Law in Tort"

Craig Brown, 1976

The author examines the confusion caused by the double-limbed tort conflict rule (Phillips v Eyre (1870) LR 6 QB 1) in regard to jurisdiction and choice of law, as well as the significance of the "proper law of the tort" exception (Boys v Chaplin [1968] 2 QB 1). While emphasising the distinction between jurisdiction and choice of law, the author points to the interaction between jurisdiction and choice of law in order to find the appropriate forum as well as the appropriate lex causae for cross-border tort disputes. The jurisdictional doctrine of forum conveniens (where leave to serve abroad is required) and the "proper law of the tort" for choice of law purposes may provide the required degree of flexibility in tort choice of law.

^ Top of page

“Third (Anglo-Common Law) Countries and Rome II: Dilemma or Deliverance”

Elsabe Schoeman, 2011

The Rome II Regulation deals with choice of law in tort. The article examines the value of this Regulation vis-à-vis third (non-EU Anglo-Common law) countries, analysing the unique EU environment and the continuous movement towards uniformity and certainty. The author discusses the general choice of law regime laid down in Article 4 of the Regulation and applies it to two famous Anglo-Common law cases: Neilson v Overseas Projects Corporation of Victoria Ltd and Harding v Wealands, concluding that these cases would probably have been decided differently under Rome II. The article concludes that Rome II may indeed have comparative value for these third countries and that its importance should not be underestimated.

^ Top of page

“The Australia and New Zealand Judgments Scheme: A Common Law Judicial Area”

Oliver L Knöfel and Reid G Mortensen, 2011

This article provides a comprehensive background to the enactment of the trans-Tasman Proceedings Acts in both Australia and New Zealand within the context of the Closer Economic Relations Trade Agreement (1983) between the two countries. It also provides a comparative perspective on the trans-Tasman vis-à-vis European Union, other European and Hague Conference arrangements in the area of cross-border jurisdiction and judgments. Discussing the details of the new trans-Tasman scheme, the authors identify a number of potential obstacles, one of those being the very different accident compensation schemes obtaining in New Zealand and Australia. On the whole, however, the scheme promises to be most successful in the regulation of trans-Tasman jurisdiction and judgments.

^ Top of page

“Closer Economic Relations – A Trans-Tasman Confederation?”

JLR Davis, 2010

The author considers the impact of several pieces of legislation on the relationship between Australia and New Zealand. Particular attention is paid to the extension of the jurisdiction of the superior courts of each county under the Trans-Tasman Proceedings Act 2010. The criticism of this extension regarding potential forum shopping as well as the problems related to the differing approaches to forum non conveniens issues are discussed. It is argued that the cumulative effect of this legislation has been to extend the jurisdictional reach of the courts of both countries to such an extent that their relationship can now be characterised as a loose confederation.

^ Top of page

“Through the looking glass: Renvoi in the New Zealand Context”

Rina See, 2012

This article provides an in depth analysis of the renvoi doctrine and its potential application in New Zealand. The author argues that the doctrine is best used where it promotes the purpose of the relevant choice of law rule. The doctrine’s possible scope and application is examined against the choice of law rules of several areas of law as they apply in New Zealand. The decision in Neilson v Overseas Projects Corporation of Victoria Ltd is then situated within the context of that broader discussion.